Backers of open primary want their say in court

PHOENIX -- Challengers to the state's open primary system want another two hours to make their case that there are not enough valid signatures to put the measure on the ballot.

Attorney Mike Liburdi told the Arizona Supreme Court on Tuesday that he was "cut off' on Thursday by Maricopa County Superior Court Judge John Rea in the middle of his arguments. And he said Rea refused to give him more time even after initiative supporters finished early.

"Given the magnitude of the controversy -- a proposed constitutional amendment that will fundamentally change the manner in which public officers are elected -- it was unreasonable and an abuse of discretion not to provide (challengers) with more time to present their case,' Liburdi argued to the high court.

But attorney Kim Demarchi, who represents those pushing the measure that Rea ruled Friday can go on the ballot, told the justices there is no reason for further hearings. And she said if the process was rushed, they share in the blame.

"The plaintiffs were aware of the limited time that would be available to consider their claims when they filed their lawsuit one week before ballot printing began,' Demarchi wrote.

She also said challengers knew exactly how many of the petitions they were challenging as valid based on claims that the circulators, as convicted felons, were ineligible. More to the point, Demarchi said they agreed to the half-day hearing.

"Even though they knew they had limited time, they did not use that time efficiently,' she wrote.

The high court is under a deadline of sorts itself to act.

Maricopa County sent the ballots to the printer last week. But Elections Director Karen Osborne said the presses will not start running until the end of this coming week.

Liburdi claims to have evidence that petitions with more than 7,000 names submitted to the Secretary of State's Office are invalid. But Rea, after hearing the evidence Liburdi was able to present within the time allotted, struck just 2,056.

That difference is important if voters are to get a chance to decide whether to scrap the current system of partisan primaries in favor of having all candidates for any particular office face off, with the top two advancing to the general election regardless of party affiliation.

Based on a 5 percent random sample, Secretary of State Ken Bennett had ruled circulators did not submit enough valid signatures to qualify for the November ballot.

Demarchi, in her own lawsuit, got Rea to rule that 577 from that sample were valid despite conclusions from Maricopa County election officials to the contrary. Extrapolating that out, that added 11,540 to Bennett's total, pushing it over the 259,213 necessary.

Deducting 2,056, the amount Rea said Liburdi proved were collected by legally ineligible circulators, still leaves enough. But Liburdi figures if he has enough time, he could convince Rea that petitions with another 4,000 also should be disqualified, again putting the tally below the threshold -- and keeping Proposition 121 off the ballot.

Liburdi conceded to Capitol Media Services that Rea told him up front he would have only two hours to make his case. But he said that does not matter.

"The court rules and the due process requirements mandate that courts be flexible with the way they manage trial proceedings,' he said. Here, Liburdi said, it should have been obvious as the afternoon wore on that he would need more time, "particularly here because the court required that we introduce our petition signature sheets piecemeal rather than all at once as we wanted to do.'

That refers to the fact that the judge would not simply accept the boxes of petitions as evidence but required Liburdi to prove, with testimony, that there was a record of a felony conviction for each of the circulators for each batch.

"The court should react to the realities of the trial proceeding and it needs to adjust the schedule accordingly,' he said.

Demarchi countered that time limits can be contested only if challengers prove that the judge abused his discretion. And she argued that initiative foes need to prove that the limits were "unreasonable under the circumstances,' something she said must take into account the fact that Liburdi agreed to them in the first place.

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